Mary Aiken and Patrick Green (APPLICANTS) and
State of Western Australia and Shire of Derby/West Kimberly (RESPONDENTS)

Judge: Barker J

Where made: Perth

Determination:

Native title exists in the entire determination area. It consists of exclusive native title rights.

Native title is held by the Bunuba People.

The exclusive native title rights over part of the determination area consist of:
- except in relation to flowing and underground waters, the right to possession, occupation, use and enjoyment of that part of the Determination Area to the exclusion of all others; and
- in relation to flowing and underground waters, the right to use and enjoy the flowing and underground waters, including:
- the right to hunt on, fish from, take, use, share and exchange the natural resources of the flowing and underground waters for personal, domestic, cultural or non-commercial communal purposes; and
- the right to take, use, share and exchange the flowing and underground waters for personal, domestic, cultural or non-commercial communal purposes.

The above rights and interests do not confer possession, occupation, use and enjoyment of the determination area of the Native Title Holders to the exclusion of all others nor do they confer a right to control the access of others to the land or waters of those parts of the determination area.

Non-native title rights and interests that exist in the determination area include:
- minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA); or
- petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and the Petroleum and Geothermal Energy Resources Act 1967 (WA); or
- geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or
- water lawfully captured by the holders of Other Interests, except the right to take and use ochre to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA).

Native title rights and interests are subject to and exercisable in accordance with the laws of the State and Commonwealth, including the common law and the traditions and customs of the Native Title Holders for personal, domestic, cultural and non-commercial communal purposes (including social, religious, spiritual and ceremonial purposes).

Other interests include:
- existing interests under the Mining Act 1978 (WA);
- rights and interests, including licences and permits granted by the Crown in right of the Commonwealth or the State;
- rights and interests under the Rights in Water and Irrigation Act 1914 (WA) including the rights and interests of the members of the public to fish, navigate, use roads in the determination area (subject to the laws of the state) where at the date of the determination the public has access to this road;
- the right to access the land by an employee, agent or instrumentality of the State, Commonwealth or Local Government Authority required in the performance of statutory or common law duties where access would be permitted to private land;
- rights of any person to access and enjoy stock routes subject to the laws of the state;
- rights of any existing public access and enjoyment at the time of determination under the Titles (Validation) and Native TItle (Effect of Past Acts) Act 1995 (WA) including waterways, beds and banks, stock routes, areas that were public places at the end of 31 December 1993, any other legal or equitable estate or interest in the land or waters, any other right (including an option and a right of redemption) charge, power or privilege over, or in connection with land or waters or an estate or interest in land or waters; and
- the rights of Telstra Corporation Limited as the owners of telecommunication facilities in the area under Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth) to inspect, install and operate telecommunication facilities in the area.

In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title.

The Bunuba Dawangarri Aboriginal Corporation RNTB as the prescribed body corporate, is to perform functions required under the Native title Act 1993 (Cth) and to act as agent for the native title holders. The native title is held on trust for the native title holders.

Detailed Information:

Background:

The Bunuba #3 application was filed on the 5th of April 2013 over the portions of Lot 341 on Deposited Plan 52596 which has already been claimed in Bunuba Part B. The application was filed with the intention of applying s 47B of the Native Title Act 1993 (Cth) so prior the extinguishment of native title was invalid (Aiken on behalf of the Bunuba People (Bunuba #3) v State of Western Australia [2015] FCA 1482 at para 14). Therefore, this allowed for a determination of exclusive native title rights in favour of the Bunuba people over the lands.

The "Bunuba People are a language-owning group who speak the language laid down on Bunuba country in the Ngarranggani. The Bunuba language is said to belong to a large region that is bounded by the Fitzroy River to the south-east, the Leopold Range to the north-east, the Oscar Range to the south-west and the Napier Range to the north-west" (Aiken on behalf of the Bunuba People (Bunuba #3) v State of Western Australia [2015] FCA 1482 at para 18). Laws of the Bunuba People originate from the Ngarranggani and this governs the lives of the Bunuba People (Aiken on behalf of the Bunuba People (Bunuba #3) v State of Western Australia [2015] FCA 1482 at para 20). These laws separate the Bunuba People from the surrounding groups.

Details Judgement

Through mediation, agreement has been reached as to the terms of a determination of native title to provide recognition of the native title rights and interests held by the Bunuba People in relation to the part of the land and waters covered by the Bunuba #3 Application. The signed agreement was then filed in the Federal Court of Australia pursuant to s 87 of the Native Title Act 1993 (Cth). The Court was satisfied that a determination of native title was within the power of the court